SUPREME COURT SETS ASIDE LOWER COURT ORDERS AS THE APPELLANT WAS NOT GIVEN A PROPER OPPORTUNITY TO BE HEARD

INTRODUCTION

A two-Judge Bench of the Supreme Court comprising of Justice C.T. Ravikumar and Justice Sanjay Kumar passed an Order dated 06.12.2023 in C.A. No.-7963/2023 (@ Special Leave Petition (C) No. 6536 of 2022) in Kanaiyalal Mafatlal Patel Vs. The State of Gujarat and others and set aside the Orders of the Original Authority, the Revisional Authority and the High Court of Gujrat and held that the Appellant was not given a proper opportunity to be heard in the lower Courts and directed the Original Authority to start the matter afresh.

FACTS

i) There was an ancestral agricultural land admeasuring 4755 square meters, bearing Block no. 521(New Block Survey No. 805) situated in Village Ambapur, Taluka and District Gandhinagar, Gujarat, that was inherited by one Mr. Shankarbhai Dungardas. He died in the year 1952 leaving behind three sons – Mr. Becharbhai, Mr. Prabhudasbhai and Mr. Lalbhai. Mr. Becharbhai died on 24.04.1993, leaving behind his widow, Mrs. Surajben (Respondent No. 14) and progeny – Shardaben (Respondent No. 10), Mr. Mafatbhai (Respondent No. 11), Ms. Kokilaben (Respondent No. 12), Manjulaben (Respondent No. 13) and Sakarben (Respondent No. 15). Mr. Prabhudasbhai died on 21.01.2007, leaving behind his widow, Mrs. Dahiben (Respondent No. 8), along with two sons and a daughter – Mr. Jayantibhai (Respondent No. 6), Mr. Keshavlal (Respondent No. 7) and Belaben (Respondent No. 9). Mr. Lalbhai died on 04.08.1996, leaving behind his widow, Mrs. Gangaben (Respondent No. 19), two sons and a daughter – Mr. Ghanshyambhai (Respondent No. 16), Mr. Rajubhai (Respondent No. 17) and Ms. Vinaben (Respondent No. 18).

ii) It was the case of the Appellant, Mr. Kanaiyalal Mafatlal Patel, that the larger extent of 4755 square meters, owned by Mr. Shankarbhai, was partitioned amongst the families whereby 2377.50 square meters fell to the share of Mr. Prabhudasbhai and the Respondent Nos. 6 to 9 while the remaining extent of 2377.50 square meters was allotted to the other two branches, comprising Respondent Nos. 10 to 19. The Appellant further claims that Respondent Nos. 10 to 19 executed an Agreement of Sale dated 29.09.2006 in his favor proposing to sell their share of land, i.e., 2377.50 square metres, to him for a sale consideration of 17,51,000/- and Mr. Prabhudasbhai, the husband/father of Respondent Nos. 6 to 9, who was still alive at that time, signed that Agreement as a confirming party, certifying that he had a half-share in the larger extent of land, which he had not sold, and confirmed that he had not received any amount from the sale consideration.

iii) Thereafter, Respondent Nos. 10 to 19 executed a Registered Sale Deed in favour of the Appellant on 12.07.2007, alienating their share of the land in his favour. Notably, the Agreement of Sale dated 29.09.2006 recorded that Respondent Nos. 10 to 19 had received the entire sale consideration of 17,51,000/- in cash and through cheques gradually, whereas the Sale Deed dated 12.07.2007 noted the sale consideration as Rs. 1,07,000/- only. Pursuant thereto, Entry No. 6129 was made on 25.07.2007 in the Revenue Records carrying out mutation in the Appellant’s favour. The names of Respondent Nos. 6 to 9 were also mutated, vide Entry No. 6167 dated 26.12.2007, after the death of Mr. Prabhudasbhai on 21.01.2007.

iv) The Respondent Nos. 6 to 9 then filed Case No. PO/Fragmentation/SR/02/2010 in March, 2010, before the Ld. Prant Officer, Gandhinagar (“Original Authority”), challenging the sale transaction of the year 2007 in favour of the Appellant, alleging that it was in violation of the provisions of the Act of 1947. By Order dated 17.05.2012, the Ld. Prant Officer held the sale transaction to be illegal on the ground that it was in breach of Section 31(1) (b) Prevention of Fragmentation and Consolidation of Holdings Act of 1947 (“Act”) (Restrictions on alienation and sub division of consolidation holdings), as only part of the land was sold in favor of the Appellant. Subsequently, the Ld. Prant Officer ordered the cancellation of the Appellant’s Sale Deed and imposed a fine of Rs. 250/- by him. He also directed the initiation of proceedings to remove the Appellant from the land.

v) A Revision under Section 35 of the Act (Power of State Government to call for proceedings) was thereupon filed in the name of the Appellant before the Gujarat Government, against the afore-stated Order dated 17.05.2012. Significantly, the Appellant claimed that he never filed this Revision. In any event, the same was taken on file as Case No. MVV/Con/Ten/3/2013 by the Additional Secretary, Revenue Department (Appeals), Government of Gujarat, and it was dismissed, vide Order dated 10.07.2015. The Appellant claimed that he came to know of the Order dated 17.05.2012 only in May, 2018, and filed a Revision in Case No. MVV/Con/Ten/4/2018 before the Gujarat Government. This Revision was dismissed by the Additional Secretary, Revenue Department (Appeals), Government of Gujarat (“Revision Authority”), vide Order dated 06.09.2018.

vi) Thereafter, apart from holding that the Order dated 17.05.2012 was proper and lawful, the Revisional Authority held that the principle of Res Judicata would be applicable as the issue was already decided by the Additional Secretary, Revenue Department (Appeals), Gujarat, vide Order dated 10.07.2015 in Case No. MVV/Con/Ten/3/2013.

vii) Aggrieved by the Revisional Authority’s Order dated 06.09.2018, the Appellant approached the Gujarat High Court under Article 226 of the Constitution, in Special Civil Application No. 2709 of 2020. The Single Judge Bench of the Gujarat High Court, by Order dated 24.12.2021, dismissed the said Writ Petition.

viii) Subsequently, the Appellant preferred Letters Patent Appeal No. 14 of 2022 before a Division Bench of the Gujarat High Court, but the said Appeal was dismissed by Order dated 12.01.2022. Therein, the Division Bench stressed on the delay on the part of the Appellant in preferring a Revision in the year 2018 against the Order dated 17.05.2012. Reference was made to the observations in the Judgment under Appeal in the context of the address of the Appellant i.e., in respect of the Appellant’s claim that he was never served with a notice in the Appeal and that he never preferred the first Revision. Further, the Division Bench held that Respondent Nos. 6 to 9 had the locus to challenge the sale as the land remained joint and there was no partition, whereby there could be demarcation thereof and sale of a specific portion to the Appellant.

ix) Referring to Section 31(1)(b) of the Act, the Division Bench affirmed that the transfer of a portion of the land in favour of the Appellant, without the prior permission of the Collector, was in breach of the Act, and that the Authorities as well as the Ld. Judge did not commit any error in deciding the case.

x) Aggrieved by the Order dated 12.01.2022, the Appellant filed A.No.-7963/2023 (@ Special Leave Petition (C) No. 6536 of 2022) before the Supreme Court.

SUPREME COURT ANALYSIS

The Apex Court vide Order dated 06.12.2023, made the following observations:

1) The first Revision filed in the name of the Appellant against the Order dated 17.05.2012, also reflected the very same postal address. Surprisingly, though the Appellant claimed that he did not reside at the address i.e., Res: B/51, Sanskar Society, Shahibaug, Ahmedabad – 380004, his Revision filed in the year 2018 again reflected the same address. The Appellant, however, filed a Criminal Complaint on 18.12.2019 alleging that some person had impersonated him and filed the first Revision. But no action was taken thereon due to the pendency of this litigation. The Appellant claimed that his actual address is ‘B/9, Sadbhav Bungalow, opposite Om Tower, Shahibaug, Ahmedabad – 380004’. It was stated that the address reflected in the Order dated 17.05.2012 was repeated in the Revision filed in the year 2018 as the cause title of the Revision necessarily had to tally with the cause title in the Order dated 17.05.2012. However, in the Revision, the Appellant did not raise the issue of his correct address while contending that he was not served with any notice.

2) The Apex Court observed that, in the context of Section 31(2) of the Act of 1947, a ‘fragment’, as defined under Section 2(4) thereof, means a plot of land of less extent than the appropriate standard area determined under the Act of 1947. In terms of such determination in so far as irrigated land is concerned, a ‘fragment’ would mean an extent less than Ac 0.20 Guntas. As the Appellant was sold an extent of Ac 0.23 Guntas, the Appellant contended that it is not a fragment and Section 31(1)(b) of the Act of 1947 would have no application to the sale transaction that happened in his favour.

3) The Appellant also contended that though the Division Bench of the High Court recorded a finding that there was no demarcation of the larger extent of land pursuant to a partition, it was a matter of record that the Respondent Nos. 6 to 9 executed a sale agreement, titled ‘Earnest Deed without possession’, on 11.11.2014 proposing to sell their share of land, quantified as 2377.5 square meters, to a third party. The Appellant argued that this act on their part foreclosed any argument that there was no partition or demarcation of the larger extent, whereby Respondent Nos. 10 to 19 could have sold him their half-share of land which tallies with the half-share claimed by Respondent Nos. 6 to 9 in the sale agreement.

4) The Supreme Court also observed that the reference was made by the Appellant to the entries in the Revenue Records about the subject land, showing that dry crops were grown in 2 acres while rice was cultivated in an extent of Ac 0.20 Guntas and an extent of Ac 0.20 Guntas was a garden. The Appellant pointed out that the earlier entries, from the year 1951 onwards up to the year 1964, showed that paddy, cotton, millets and aniseed were grown in the land, indicating that it had a source of irrigation.

5) The Apex Court observed that the Appellant did not take any adequate care to establish his case. However, the fact also remained that he was never given a proper hearing on merits by the Authorities before holding against him. The initial Order dated 17.05.2012 merely stated that notice was served upon the parties and, admittedly, no opportunity of hearing was afforded to the Appellant.

6) The Supreme Court further observed that the controversy as to the correct address of the Appellant should not trouble the Apex Court, despite his filing a Revision with the same address as was shown in the first Revision. The irrefutable fact was that the Appellant was not given a full hearing on merits either by the Original Authority or by the Revisional Authority.

7) Further, the reduction of the sale consideration in the Appellant’s documents from Rs. 17,51,000/- to Rs. 1,07,000/- would have to be examined in the light of the Appellant’s claim that his vendors wanted him to show a reduced sale consideration in the sale deed for registration charges. The issue as to whether Respondent Nos. 6 to 9 were entitled to reopen the sale transaction of 2007 in the year 2010, despite the Appellant’s claim that Mr. Prabhudasbhai knew of and approved the sale transaction, would also have to be examined as it is claimed by Respondent Nos. 6 to 9 that the Sale Agreement in which Mr. Prabhudasbhai was shown as a confirming party never came to anyone’s attention. All those aspects would require verification and adjudication upon evaluation of evidence. The Parties would be in a position to adduce proper evidence in support of their respective cases only if they were given an opportunity to do so before the Original Authority, i.e., the Ld. Prant Officer, Gandhinagar.

8) Further, having purchased the land in the year 2007 after parting with valuable consideration, the Appellant cannot be condemned without providing him a full opportunity to put forth his case with supporting evidence.

ORDER

The Supreme Court allowed the Appeal and set aside the Orders passed by the Gujarat High Court as well as the Orders passed by the Authorities and remanded the matter for consideration afresh on facts and law. The Apex Court further restored the Case No. PO/Fragmentation/SR/02/2010 filed by Respondent Nos. 6 to 9 before the Ld. Prant Officer, Gandhinagar, State of Gujarat. The Ld.  Prant Officer was directed to give due notice to both Parties fixing an appropriate date for taking up the case and allowing them full opportunity to adduce evidence, oral and documentary, and thereafter take a reasoned decision in the matter in accordance with law.

Kartik Khandekar

Associate

The Indian Lawyer